Washington (CNN) – Two members of the Supreme Court took the unusual step of speaking out over racially insensitive remarks by a federal prosecutor in a drug case, when rejecting review of the defendant's appeal.

Justice Sonia Sotomayor wrote a strongly worded statement Monday, saying the prosecutor's remarks about an African-American suspect were "an affront to the Constitution's guarantee of equal protection of the laws."Follow @politicalticker

The prosecutor–whom Sotomayor refused to name–said during cross-examination of a drug conspiracy case: "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you–a light bulb doesn't go off in your head and say, This is a drug deal?"

Sotomayor, the only Hispanic on the high court, agreed with the majority that the appeal should be rejected for a variety of procedural reasons, but was nevertheless adamant on her larger point.

"It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century," she said. "We expect the government to seek justice, not fan the flames of fear and prejudice."

Most appeals are summarily rejected by the high court without comment. Those that do merit a brief written response typically involve a justice objecting to the denial of review. But here, Sotomayor and Justice Stephen Breyer supported the denial, and decided to take the next step and comment on the source of the controversy.

"I write to dispel any doubt whether the court's denial of certiorari should be understood to signal our tolerance of a federal prosecutor's racially charged remark," said Sotomayor. "It should not."

Bongani Calhoun was convicted of participating in a drug buy in Texas and given 15 years behind bars on various charges. The issue was whether he was a willing participant, or just happened to be present when others attempted to purchase narcotics from undercover federal agents.

The prosecutor repeatedly pressed Calhoun on the stand about the defendant's claim he did not want to be in the hotel room in the first place. That is when the inflammatory remarks were made.

Calhoun's lawyers did not formally challenge the statement, or a subsequent remark by the prosecutor, who told the jury, "What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors."

The justices in rejecting Calhoun's appeal apparently accepted the lower appeals court's conclusion that the inmate never established that the insensitive comments necessarily prejudiced the outcome of the criminal trial.

Sotomayor and Breyer also criticized the Justice Department for its initial, tepid reaction to the remarks, with officials telling an appeals court they were only "impolitic." The solicitor general, the Obama administration's top lawyer before the high court, later acknowledged the remarks were "unquestionably improper."

soundoff(37 Responses)

lolo

@ Pathetic CNN You are really are out of touch. It is you and your right-wing nuts who think that slavery should be implemented again to keep all minorities in line at least that is what you want your base to beleve. Thank God other people besides the blacks have awaken to you nut jobs.The old white men's club just thinks that minorities are slaves no matter what. If laws were not created to treat all people the same and equal we would still have slavery. If anyone is getting government handouts it is not the minorities and illegals, and you can take that to the bank.

February 25, 2013 11:50 am at 11:50 am |

Rudy NYC

The REAL Truth...

Part of thinks that the statement may have been made in the "heat of the moment".. part of me agrees with other posters on it being racist. I see both sides.. .reality is that a large proportion of what the prosecutor referred to, is indeed true. I also find it strange that Sotomayor responded in the manner she did – sounds like she was personally affronted by the remarks, which would make her response as "impolitic" as the prosecutors.
------------------
You can't fool us. The only reason you do not find as racially offensive as most people is because you're a Paulian Libertarian, who believes the Civil Rights Act is unconstitutional and making racially offensive statements is an acceptable form of the freedom of speech.

February 25, 2013 11:58 am at 11:58 am |

Dominican mama 4 Obama

I seriously doubt the prosecutor was trying to "fan the flames of fear and prejudice."
-------------------------------------------------
Yes you're right. He wasn't fanning, he was PERPETUATING, and felt quite comfortable doing so in such a "hallowed" environment.
That loud noise you hear are the brakes that Justice Sotomayor applied in full force.
Hurray for her and her courage to go against what apparently even at that high level of our justice system has become the status quo.
If they can speak thusly at the Supreme Court level, can you imagine how they are conducting themselves (with impunity might I add) in the lower courts?

February 25, 2013 12:07 pm at 12:07 pm |

tg

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life".

'Above words spoken by Sonia Sotomayor. Well, being a racist herself, I guess she would know a racist comment when she heard or read one.

February 25, 2013 12:08 pm at 12:08 pm |

Laverne

Of course Clarence Thomas set there and said nothing of importance as usual! It is unfortunate, this man seem to stand for nothing and seem to be afraid to represent African Americans in anyway which is why he was picked to be on the supreme court in the first place, knew he would just go along with the program. As far as I am concerned Thurgood Marshall is still the the first and only black that served the Supreme Court!

February 25, 2013 12:10 pm at 12:10 pm |

Dominican mama 4 Obama

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life".

'Above words spoken by Sonia Sotomayor. Well, being a racist herself, I guess she would know a racist comment when she heard or read one
-------------------------------------------------
Please, you're doing your usual right-wing false equivalency jig here.
It is slow here at work right now so here's my response: If I'm born and raised in a spanish country and you were not it would stand to reason that I would have more insight into what being a Latina is than you, just striclty based on life experience. There's nothing racist about that. Now you thiking that she doesn't have a right to point out the obvious, THAT's racist.

February 25, 2013 12:24 pm at 12:24 pm |

Fair is Fair

The prosecutor, most certainly, "acted stupidly".

February 25, 2013 12:25 pm at 12:25 pm |

tg

ART

PatheticCNN you must live in an alternate universe or just like walking around with your head up your you know what.
**********************************************************************************

Perhaps you should take your head out of your you know what.

February 25, 2013 12:33 pm at 12:33 pm |

Woman In California

Racism ended when the country elected it's first half-black president. The country was going to be fine and all was well with the world. At least some thought that to be the case.

February 25, 2013 12:37 pm at 12:37 pm |

Anonymous

@lolo
If anyone is getting government handouts it is not the minorities and illegals, and you can take that to the bank.
-------------–
To quote Domininca mama: Bam. Down goes Fraizer.

To be truthful though, I have a few of those government hand-out folks in my extended (and very white) family, many of whom are under-educated, under-employed, and / or collecting social security, medicare, and government pensions. They cry and moan about Democrats, Obama, and society in general day after day. I try very hard not to laugh at them - they are family after all - but they know where I'm coming from. Our conversations lately have been about the weather, our children, and our grandchildren (minus the fact of who is and who isn't milking the government). It's quite a challenge to stay on their good side.

February 25, 2013 12:53 pm at 12:53 pm |

JustAO

Racism in this country will end once there are no more baby-boomers or gen y living since kids these days have no skin color problem instilled in them and most people will be mixed and brown in the future anyways.

February 25, 2013 12:59 pm at 12:59 pm |

The Stoopid Party

horace

Sotomayor has made racist statements herself. She once said that all white men should be castrated.

--

No, horace, she never said that. Those comments were taken from a spoof article published by the Carbolic Smoke Ball on June 2, 2009. In the wingnut world, fiction becomes fact if it is emailed and repeated often enough.